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DEPARTMENT OF TRANSPORTATION,
DRIVER AND MOTOR VEHICLE SERVICES DIVISION

 

DIVISION 90

IMPLIED CONSENT HEARING PROCEDURES

735-090-0000

Definitions

As used in OAR 735-090-0000 through 735-090-0120, unless the context requires otherwise:

(1) “Agency” means Driver and Motor Vehicle Services Division (DMV) of the Oregon Department of Transportation.

(2) “Error of the Department,” as used in ORS 813.440(1)(c), means:

(a) An act or omission of the agency or OAH, which by its occurrence, prevented the petitioning party from participating in a recorded or reported hearing that determines the validity of a suspension of driving privileges; or

(b) An act or omission of the agency or OAH in issuing a subpoena to a witness, including a police officer, to a recorded or reported hearing that determines the validity of a suspension of driving privileges and where the witness’ participation at the reported or recorded hearing is required in order for the agency to establish the required elements under ORS 813.410(6); or

(c) An act or omission of the agency or OAH in issuing a subpoena to a necessary witness where:

(A) The agency receives the petitioning party’s request to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; and

(B) The act or omission, by its occurrence, prevented the necessary witness from participating in the hearing; or

(d) An act or omission of the agency or OAH that prevents a recorded or reported hearing that determines the validity of a suspension of driving privileges from being conducted.

(3) “In-person hearing” means that at least one of the petitioning party and at least one agency witness are present in the same location as the Administrative Law Judge.

(4) “OAH” means the Office of Administrative Hearings when it is performing services on behalf of the agency under OAR chapter 735 division 90.

(5) “Other just cause” as used in ORS 813.440(1)(g) means:

(a) Circumstances beyond the reasonable control of the petitioning party and beyond the ability of a reasonable person to foresee, which:

(A) Prevented the petitioning party from filing a timely request for a hearing as set forth in ORS 813.410(3); or

(B) Prevented the petitioning party from requesting the agency or OAH to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; or

(C) Prevented the petitioning party from participating in a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(b) Circumstances where a petitioning party moves for a continuance of a hearing or a request that a necessary witness be subpoenaed to a hearing and, due to circumstances beyond the control of the petitioning party:

(A) The necessary witness does not appear at the hearing because the necessary witness was unknown to the petitioning party prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges; or

(B) The necessary witness does not appear at the hearing and could not be served with a subpoena at least 72 hours prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(c) Circumstances beyond the control of a petitioning party that require a continuance of a hearing because documentary evidence referred to or presented at the hearing by a necessary witness was not provided to the petitioning party either before or during the hearing.

(d) Circumstances beyond the control of the agency or OAH that prevented an administrative law judge from conducting a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(e) Circumstances that require the department to issue a notice of amendment to an Implied Consent Combined Report (Form 735-0075) or Implied Consent Blood Test Failure Report (Form 735-0055) and the petitioning party is unable to file a timely request for hearing as set forth in ORS 813.410(3).

(6) “Necessary witness” means a witness whose testimony is essential to support a material fact or position of the petitioning party. The fact or position to be supported by the necessary witness must be within the scope of an implied consent hearing as set forth in ORS 813.410(6).

(7) “Offense” means the alleged Driving While Under the Influence of Intoxicants incident.

(8) “Petitioner” means the person whose driving privileges may be suspended.

(9) “Petitioning Party” means the petitioner or the petitioner’s attorney.

(10) “Received by DMV” means:

(a) Personally delivered to DMV Headquarters. 1905 Lana Ave. NE, Salem, OR;

(b) Delivered by mail to DMV Headquarters, 1905 Lana Ave. NE, Salem, OR 97314;

(c) Received by facsimile machine at telephone number (503) 945-5521; or

(d) Received by electronic mail via the implied consent hearing request form provided on DMV’s website – OregonDMV.com.

Stat. Auth.: ORS 183.341, 184.616, 184.619, 802.010, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: MV 5-1984, f. 6-29-84, ef. 7-1-84; MV 10-1985, f. 9-19-85, ef. 9-20-85; Administrative Renumbering 3-1988, Renumbered from 735-021-0100; MV 2-1991, f. & cert. ef. 3-18-91; MV 15-1993, f. 10-22-93, cert. ef. 11-4-93; DMV 7-1997, f. & cert. ef. 9-18-97; DMV 21-2002, f. & cert. ef. 11-18-02; DMV 23-2004, f. & cert. ef. 11-17-04; DMV 14-2007, f. & cert. ef. 12-24-07; DMV 24-2010, f. 12-22-10, cert. ef. 1-1-11

735-090-0020

Hearings Requests

(1) A hearing request must be in writing. The request should include:

(a) Petitioner’s full name;

(b) Petitioner’s complete mailing address;

(c) Date of arrest;

(d) Petitioner’s Oregon driver license number;

(e) Petitioner’s date of birth;

(f) Telephone number where petitioner can be called between 8 a.m. and 5 p.m.;

(g) Brief statement of the issues the petitioner proposes to raise at the hearing; and

(h) Dates and times the petitioner or attorney cannot participate in a hearing.

(2) A petitioner may request an in-person hearing either as part of the hearing request or as an amendment to the hearing request. The request for in-person hearing or any amendment to the request for an in-person hearing must be made within the time requirements specified in section (4), (5) or (6) of this rule. A petitioner may request an in-person hearing when submitting a late hearing request but may not amend the request.

(3) A request for an interpreter for a non-English speaking petitioner must be part of the hearing request.

(4) To be considered timely, a hearing request submitted pursuant to ORS 813.132 or 813.410(3), for failure of a breath test or refusal of a breath, blood or urine test, must be received by DMV by the tenth day following the arrest of the petitioner. Oregon Rules of Civil Procedure 10A (ORCP 10A) will be used to determine the computation of time.

(5) To be considered timely, a hearing request submitted pursuant to ORS 813.410(3), for failure of a blood test, must be received by DMV by the tenth day from the date DMV sends notice of suspension. ORCP 10A will be used to determine the computation of time.

(6) DMV will issue a final order denying an untimely hearing request unless the petitioning party demonstrates that the request should be granted under ORS 813.440.

[Publications: Publications referenced are available from the agency.]

Stat. Auth: ORS 183.341, 184.616, 184.619, 802.010, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: MV 5-1984, f. 6-29-84, ef. 7-1-84; MV 10-1985, f. 9-19-85, ef. 9-20-85; Administrative Renumbering 3-1988, Renumbered from 735-021-0110; MV 2-1991, f. & cert. ef. 3-18-91; MV 15-1993, f. 10-22-93, cert. ef. 11-4-93; DMV 3-1996, f. & cert. ef. 7-26-96; DMV 21-2002, f. & cert. ef. 11-18-02; DMV 23-2004, f. & cert. ef. 11-17-04; DMV 14-2007, f. & cert. ef. 12-24-07; DMV 24-2010, f. 12-22-10, cert. ef. 1-1-11; DMV 10-2014, f. & cert. ef. 9-19-14

735-090-0040

Document Submission Requirements

(1) The following documents, sent by police agencies, shall be received by DMV by the tenth day following arrest. These documents are:

(a) Original and a copy of the Implied Consent Combined Report, Form 735-0075, and if applicable, the CDL Implied Consent Addendum, Form 735-0075A; and

(b) The Oregon driver license or permit if confiscated.

(2) An Implied Consent Combined Report, Form 735-0075, and if applicable, a CDL Implied Consent Addendum, Form 735-0075A, not received within ten days following the arrest and failure of the breath test or refusal of a breath, blood or urine test, are inadmissible at any hearing conducted within 30 days following the arrest pursuant to ORS 813.132 or 813.410, but are admissible in a hearing authorized under ORS 813.440.

(3) The original and a copy of the Implied Consent Blood Test Failure Report, Form 735-0055, sent by police agencies, shall be received by DMV by the 45th day following arrest. If form 735-0055 is not received within 45 days following the date of arrest, no license suspension action will be taken by DMV.

[ED. NOTE: Forms referenced are available from the agency.]
[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183.341, 184.616, 184.619, 802.010, 813.410 & 813.440
Stats. Implemented: ORS 813.131, 813.132, 813.410 & 813.440
Hist.: MV 5-1984, f. 6-29-84, ef. 7-1-84; MV 10-1985, f. 9-19-85, ef. 9-20-85; Administrative Renumbering 3-1988, Renumbered from 735-021-0120; MV 2-1991, f. & cert. ef. 3-18-91; MV 15-1993, f. 10-22-93, cert. ef. 11-4-93; DMV 3-1996, f. & cert. ef. 7-26-96; DMV 7-1997, f. & cert. ef. 9-18-97; DMV 21-2002, f. & cert. ef. 11-18-02; DMV 23-2004, f. & cert. ef. 11-17-04

735-090-0042

Police Officer Request for an In-Person Hearing

A police officer may request that any hearing required under ORS 813.410 be an in-person hearing. The request may be made by:

(1) Marking the box provided on the Implied Consent Combined Report, Form 735-0075, or Implied Consent Blood Test Failure Report, Form 735-0055; or

(2) Submitting a separate written request to DMV Hearings Case Management Unit. The request may be:

(a) Personally delivered to DMV Headquarters. 1905 Lana Ave. NE, Salem, OR;

(b) Delivered by mail to DMV Headquarters, 1905 Lana Ave. NE, Salem, OR 97314; or

(c) Received by facsimile machine at telephone number (503) 945-5521.

(3) To be considered timely, an officer’s in-person hearing request submitted pursuant to ORS 813.132 or 813.410(3), for failure of a breath test or refusal of a breath, blood or urine test, must be received by DMV by the tenth day following the arrest of the petitioner. Oregon Rules of Civil Procedure 10A (ORCP 10A) will be used to determine the computation of time.

(4) To be considered timely, a hearing request submitted pursuant to ORS 813.410(3), for failure of a blood test, must be received by DMV by the 45th day following the arrest of the petitioner. ORCP 10A will be used to determine the computation of time.

(5) A police officer may amend the request for an in-person hearing within the time requirement specified in section (3) or (4) of this rule.

Stat. Auth.: ORS 183.341, 184.616, 184.619, 802.010, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: DMV 24-2010, f. 12-22-10, cert. ef. 1-1-11; DMV 10-2014, f. & cert. ef. 9-19-14

735-090-0051

Subpoena of Witness

Under no circumstance will DMV or OAH compel a witness to attend and testify at a hearing that determines the validity of a suspension of driving privileges unless the witness is served with a subpoena at least 72 hours prior to the time of the hearing.

Stat. Auth.: ORS 183.341, 184.616, 184.619, 802.010, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: DMV 23-2004, f. & cert. ef. 11-17-04; DMV 14-2007, f. & cert. ef. 12-24-07

735-090-0066

Witness Information, Requests for Admissions, and Written Interrogatories

(1) The Agency finds that use of the discovery methods listed in OAR 137-003-0566(1)(a), (d) and (e) (names, telephone numbers, and addresses of witnesses expected to testify at the hearing, requests for admission, and written interrogatories respectively) would unduly complicate and interfere with the hearing processes in Implied Consent contested case hearings due to the statutorily mandated timeframe within which these cases must be decided, the volume of cases and need for speed and informality in these hearings. The current alternative procedures for sharing relevant information, including those established in Oregon Administrative Rule, chapter 735, division 90, are sufficient to ensure fundamental fairness in Implied Consent contested case hearings.

(2) The witness information, requests for admission, and interrogatories described in OAR 137-003-0566(1)(a), (d) and (e) do not apply to the Agency’s Implied Consent contested case hearings and may not be used in such hearings.

Stat. Auth.: ORS 183.341, 184.616, 184.619, 802.010, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: DMV 13-2013 f. & cert. ef. 9-24-13

735-090-0101

Hearing Location

(1) Except as provided in section (2) of this rule, an in-person hearing will be held either in the county where the alleged offense occurred or at any place within 100 air miles of the place where the offense is alleged to have occurred. There is no location restriction when a hearing is conducted by telephone or other two-way electronic communication device.

(2) If there is a mutual agreement between the petitioning party and DMV, an in-person hearing may be held at a location outside of either the county where the alleged offense occurred or 100 air miles of the place where the offense is alleged to have occurred.

Stat. Auth.: ORS 183.341, 184.616, 184.619, 802.010, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: DMV 23-2004, f. & cert. ef. 11-17-04; DMV 2-2007, f. & cert. ef. 1-24-07; DMV 24-2010, f. 12-22-10, cert. ef. 1-1-11

735-090-0110

Just Cause Petitions

Persons wishing to have the agency consider, under ORS 813.440, their grounds for not filing a timely hearing request or for not attending a hearing shall include the following in their petition:

(1) The information specified in OAR 735-090-0020(1);

(2) The date and DMV case number of the defaulted hearing, when applicable; and

(3) A statement of the circumstances relied upon for just cause and an explanation of how those circumstances caused the failure to file a timely hearing request or to appear at a scheduled hearing; and
(4) Any other documentation relied upon.
Stat. Auth.: ORS 183.341, ORS 184.616, ORS 184.619, ORS 813.410, ORS 813.440
Stats. Implemented: ORS 813.410
Hist.: MV 10-1985, f. 9-19-85, ef. 9-20-85; Administrative Renumbering 3-1988, Renumbered from 735-021-0165; MV 2-1991, f. & cert. ef. 3-18-91; MV 15-1993, f. 10-22-93, cert. ef. 11-4-93; DMV 21-2002, f. & cert. ef. 11-18-02

735-090-0120

Police Officer Unable to Appear at Hearing

(1) If a subpoenaed police officer is unable to appear at a hearing under ORS 813.410 due to an officer’s illness, vacation or official duty conflicts, a hearing will be re-scheduled as soon as practicable.

(2) DMV will rescind the suspension of the petitioner's driving privileges pending the outcome of the hearing conducted pursuant to ORS 813.440(1)(d).

(3) The DMV or OAH may receive notification of an officer’s illness, vacation or official duty conflict before or after a scheduled hearing. Post hearing notification must be received by the DMV or OAH no later than 10 days after the hearing. Verification must be to the satisfaction of the DMV.

(4) An official duty conflict exists if the subpoenaed police officer is unable to attend the hearing due to any of the following conditions:

(a) Community caretaking pursuant to ORS 133.033;

(b) Court appearance on behalf of the police officer’s agency;

(c) Participating in employer approved training; or

(d) Duty-related physical incapacity.

(5) Nothing in this rule prevents the taking of evidence at the time of the originally scheduled hearing and continuing the hearing for the testimony of the unavailable police witness(es).

Stat. Auth.: ORS 183.341, 184.616, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: MV 15-1993, f. 10-22-93, cert. ef. 11-4-93; DMV 7-1997, f. & cert. ef. 9-18-97; DMV 14-2007, f. & cert. ef. 12-24-07; DMV 30-2009, f. 12-22-09, cert. ef. 1-1-10; DMV 10-2014, f. & cert. ef. 9-19-14

735-090-0125

Original Hearing

The date of the original hearing, as used in ORS 813.440(1)(f), is the initial date that OAH scheduled a hearing to be held for a particular case, regardless of whether a hearing actually took place on that date.

Stat. Auth.: ORS 183.341, 184.616, 813.410 & 813.440
Stats. Implemented: ORS 813.410 & 813.440
Hist.: DMV 30-2009, f. 12-22-09, cert. ef. 1-1-10

735-090-0130

Error of the Department

In accordance with the definition of "Error of the Department" specified in OAR 735-090-0000(2), in a hearing that determines the validity of a suspension of driving privileges under ORS 813.410, if hearsay evidence is used to establish the required elements under 813.410(6) and a petitioning party presents substantial evidence that contradicts the hearsay evidence, DMV will rescind the suspension and OAH will continue the hearing pursuant to 813.440(1)(c) and subpoena the hearsay witness to the continued hearing.

Stat. Auth.: ORS 184.616, 184.619 & 802.010
Stat. Implemented: ORS 813.410 & 813.440
Hist.: DMV 11-2004(Temp), f. & cert. ef. 5-24-04 thru 11-19-04; DMV 23-2004, f. & cert. ef. 11-17-04; DMV 14-2007, f. & cert. ef. 12-24-07

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